[1998] KEHC 248 (KLR)
The court found that the failure to file a defence was due to the mistake of the advocate's clerk, which is attributable to the advocate and not the litigant. The court emphasized that such mistakes should not be visited upon the litigant. Furthermore, the intended defence annexed by the defendant raised triable...
Source-derived case information.
- Citation
- [1998] KEHC 248 (KLR)
- Parties
- Plaintiff: Ahmed Meera Shiab Deen; Defendant: Mary Wangui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1376 of 1995
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application allowed; ex-parte judgment set aside
- Legal Topics
- Setting Aside Ex Parte Judgment, Default of Defence, Mistake of Advocate, Triable Issues, Immovable Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Meera Shiab Deen
Plaintiff
Mary Wangui
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex-parte judgment entered in default of defence should be set aside.
- 2 Whether the mistake of an advocate's clerk is sufficient ground to set aside judgment.
- 3 Whether the intended defence raises triable issues.
Ratio Decidendi
The court found that the failure to file a defence was due to the mistake of the advocate's clerk, which is attributable to the advocate and not the litigant. The court emphasized that such mistakes should not be visited upon the litigant. Furthermore, the intended defence annexed by the defendant raised triable issues, particularly as the subject matter involved immovable property. Exercising its discretion under Order 9A Rule 10 of the Civil Procedure Rules, and guided by the principle that justice should be done, the court set aside the ex-parte judgment and allowed the defendant to file a defence within 14 days, awarding costs of the application to the plaintiff.
Court Disposition
application allowed; ex-parte judgment set aside
Orders
- The ex-parte judgment entered on 19th March, 1996 is set aside.
- The defendant shall file and serve a defence within 14 days of the ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1376 OF 1995
AHMED MEERA SHIAB DEEN.....................................PLAINTIFF
versus
MARY WANGUI..............................................................DEFENDANT
R U L I N G
The defendant/applicant has moved the court by way of Chamber Summons under Order 9A Rule 10 of the Civil Procedure Rules for an order that the ex-parte judgment entered in default of defence on 19th March, 1996 be set aside and that she be allowed to file a defence.
The said application is supported by an affidavit sworn by the counsel for the defendant/applicant to which grounds of objection and affidavit in reply have been filed on behalf of the plaintiff/respondent.
The reasons given for failing to file a defence appear in the affidavit of the learned counsel for the defendant/applicant. It was the mistake of the advocates clerk who was given the documents to file but failed to do so. The mistake of an advocate’s clerk is that of the advocate concerned and I note that counsel has not disowned the clerk save that he has left the firm and his whereabouts are unknown. This court has an unfettered discretion to set aside or not the judgment on record. See Joseph Ngunje Waweru -v- Joel Wilfred Ndiga (1982-88) 1 KAR 210. The defendant has annexed the intended defence. I raise triable issues. Further the mistake of the advocate’s clerk or the advocate as the case may be should not be visited upon the litigant.
The circumstances of this case have persuaded me to give orders in favour of the defendant/applicant, considering also that the subject matter herein is immovable property.
In the end the application hereby succeeds. The judgment is set aside. The defendant shall file and serve a defence within 14 days of today. The plaintiff respondent shall have the costs occasioned by this application. Orders accordingly.
Dated and delivered at Nairobi this 24th day of March, 1998.
A. MBOGHOLI MSAGHA
JUDGE